Public Bill Committee

[Mr. Jim Hood in the Chair]

(Except clauses 4, 11, 14 and 23, schedule 2, and any new clauses or new schedules relating to the termination of pregnancy by registered medical practitioners) - Further written evidence to be reported to the House

HF 02 Dr E Allan

Clause 46

Embryo transferred after death of civil partner or intended female parent

Question proposed, That the clause stand part of the Bill.

Mark Simmonds: I have one quick question. The clause deals with civil partnerships and it mirrors clause 39, which deals with heterosexual partnerships and the use of a mans sperm after his death. My understanding of clause 46 is that a woman who was not in a civil partnershipand might therefore not be in an intimate relationship with a women receiving treatmentwho has no genetic link to the child, and who is also dead, can be named on the birth certificate as the second parent. Is the Minister comfortable with that?

Dawn Primarolo: Under the clause, through assisted conception in a United Kingdom-licensed clinic at the time when the woman was not in a marriage or a civil partnership, but her female partner had died before the embryo could be transferred to the woman, the female partner could be registered as the parent in certain circumstances: when, immediately before the female partners death, the agreed parenthood conditions under clause 44 were in place; when the female partner had consented in writing, and had not withdrawn that consent, to the transfer of the embryo to the woman and to herself being registered as the parent of the child born as a result; when the mother decided within the 42 days in England and Wales, and 21 days in Scotland, to register that on the birth certificate; and when no else was treated as a father or parent of the child under the provisions of the Bill, or under adoption or legitimacy law. Such circumstances reflect the position of married couples. Yes, I am satisfied that one clause mirrors the otherand no more.

Question put and agreed to.

Clause 46 ordered to stand part of the Bill.

Clause 47

Woman not to be other parent merely because of egg donation

Question proposed, That the clause stand part of the Bill.

Mark Simmonds: I shall again be quick. It would be helpful if the Minister would put her views on record. We talked about sperm donors under early clauses and this clause relates to egg donors. Can the right hon. Lady confirm that a record is kept of egg donors by the Human Fertilisation and Embryology Authority and that those who have benefited will have a right to discover who the egg donors were at the appropriate age? Will it be ensured that the information available for those aged 16 and 18 absolutely mirrors that in relation to sperm donors?

Dawn Primarolo: I am happy to say yes. The hon. Gentleman is correct. The clause gives the access that he described, and it would have to, because the treatment would take place at a licensed clinic that was subject to requirements to trace the donor.

Question put and agreed to.

Clause 47 ordered to stand part of the Bill.

Clause 48

Effect of sections 33 to 47

Mark Simmonds: I beg to move amendment No. 159, in clause 48, page 43, line 4, leave out paragraph (b).

Jimmy Hood: With this it will be convenient to discuss amendment No. 160, in clause 48, page 43, line 9, leave out paragraph (b).

Mark Simmonds: I acknowledge that the proposals are probing amendments to elicit from the Minister the logic behind the clause, under which a deceased person is to be treated as the father for the purposes of being named on the birth certificate, but for no other reason. Will the right hon. Lady explain what the clause is trying to prevent? Presumably, the deceased person will be the biological father in some instances, so would not normal inheritance circumstances occur? The Minister was right to mention the other day that if someone wanted to leave something after their death to a subsequent child, they could do so in their will. That explains how someone can circumvent the problem, but not why the clause is in the Bill. For those members of the Committee who want to follow this argument, the two parts of the clause that I am particularly referring to are subsections (3)(b) and (4)(b). I would be grateful if the Minister explained the intention behind them.

John Pugh: The clause refers to someone being treated as a father for no other purpose. Elsewhere in the Bill, we read the simple phrase treated as father. Does the expression

Jimmy Hood: Order. Is the hon. Gentleman making an intervention?

John Pugh: I am supporting the amendment.

Jimmy Hood: Had the hon. Member for Boston and Skegness finished moving the amendment?
Mark Simmondsindicated assent.

John Pugh: I want to know whether the expression treated as father carries the same meaning throughout the Bill, given that it is qualified in this context. The Minister has explained that when we were talking about someone treated as a father, we meant treated as a father purely for the purpose of recognition on the birth certificate. There is some inkling in this context that it means something different in certain circumstances, so I seek clarification.

Dawn Primarolo: The Bill replaces and extends the provisions of the Human Fertilisation and Embryology (Deceased Fathers) Act 2003. We have returned to this point several times as we have gone through the latter clauses in the Bill. The 2003 Act provisions are re-enacted in clauses 39 and 40. Clause 39 relates to the use of a mans own sperm to create a child with his consent after his death, while clause 40 relates to the registration of a father when a child is born to a woman as a result of the transfer of an embryo created with donor sperm when her husband or male partner was alive and the man dies before the embryo is transferred. Clause 46 extends the provisions to same-sex couples, whether they are in a civil partnership or not, to mirror other provisions. We have had that discussion.
The provisions allow for a man, or a female intended parent, to be recorded in the register of births as a father or parent, but otherwise not to be treated as the legal parent for other purposes in law. The Human Fertilisation and Embryology Act 1990, as originally drafted, did not allow for deceased men to be treated as fathers of children conceived after their deaths. That position was based on the recommendations of the Warnock report and concerns that that might prevent the winding up of a persons estate if children were born years after their death. In a well known case, of which the hon. Member for Boston and Skegness is aware, there are now several such children. The fear in the Warnock report was that an estate could never be wound up because people would have to wait on whether genetic material from the deceased man meant that any future children could have a claim on the estate.
The 1990 Act was amended by the 2003 Act, a private Members Bill piloted through the House by my hon. Friend the Member for Birmingham, Hall Green. That Act allowed a man to be treated as the father for the purpose of birth registrationthe matter now under considerationand for no other purpose, such as decoupling from concerns over the winding up of an estate. That represents a pragmatic and fair approach.
The probing amendments tabled by the hon. Member for Boston and Skegness would remove the subsection that ensures that no further legal status is assigned to those parents. They would have only the symbolic effect of their name being recorded on the birth certificate. I do not think that he will want to do that. On reflectiongiven the questions that he has asked and the fact that he says that these are probing amendmentsI think that he will believe, as the Government do, that it is right, even with explicit consent, that full legal parenthood should not be conferred on a deceased father or parent in relation to children born following their death.
The hon. Member for Southport asked what is meant by the phrase treated...as the father, which is used throughout the Bill. It has a specific meaning in relation to clause 48. The term is used to mean treated as the father under the law. When the term is used in a more limited sense elsewhere in the Bill, that fact is expressly conveyed. That is why it is necessary at this point, in a cross-reference to the 2003 Act, to say that it is only for the purposes of registration, which is what we are discussing. It ensures that there is no inadvertent opening up of issues to which the House has already agreed.

John Pugh: Is the Minister saying that in a prior clause, or as a qualification in this clause, that the expressions treated...as the father or treated...as a parent have the general meaning of a parent in lawa father in the legal senseexcept when expressly qualified in the legislation?

Dawn Primarolo: Yes, that is the case, because of the unique circumstances being dealt with in the clause with reference to the 2003 Act. I hope that I have reassured both hon. Gentlemen that the provision is tightly drawn for a good reason. On reflection, I know that they will agree.

Mark Simmonds: The Minister has answered the point thoroughly and with great clarity. The point about it not being possible to wind up the estate many years after the persons death is the ultimate reason for the provision. That seems to make sense, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: No. 59, in clause 48, page 43, line 13, at end insert
(5A) In relation to England and Wales and Northern Ireland, a child who
(a) has a parent by virtue of section 42, or
(b) has a parent by virtue of section 43 who is at any time during the period beginning with the time mentioned in section 43(b) and ending with the time of the childs birth a party to a civil partnership with the childs mother,
is the legitimate child of the childs parents..[Dawn Primarolo.]

Jimmy Hood: With this it will be convenient to discuss Government amendment No. 60.

Mark Simmonds: I wish to lift a little more information about the amendments from the Minister. I understand that they relate to circumstances in which written consent was not required as the parties believed themselves to be in a civil partnership or marriage, but later discovered that the marriage or the civil partnership was invalid. Am I right that the amendments apply to marriages as well as civil partnerships, or only to civil partnerships? What is the basis for an invalid civil partnership? Presumably, it is not the same as a void marriage.

Dawn Primarolo: These are consequential amendments related to other Acts, including the Legitimacy Act 1976 and the Family Law Reform Act 1987. They relate to the legitimacy of children born by assisted conception to civil partners and are intended to bring the rules into line with those for married couples.
Since the Bill was introduced, it has been identified that although a child born to a same-sex couple that later entered into a civil partnership would be treated as legitimate in law for all purposes, a child born to civil partners would be treated as legitimate in law only for the more limited purposes set out in statute. For example, many family trusts create classes of beneficiary limited to the lawful issue: the legitimate child of the settlor. That anomaly will operate in the cases before us unless we correct it by means of the amendments.
The amendments are tightly drawn to correct that unintended consequence by making a clear statement that a child born to civil partners will be treated as legitimate in law for all purposes. That comes back to the point raised by the hon. Member for Southport, who asked me to distinguish between a parent or a father elsewhere in the Bill, as opposed to in the clauses before us. The issue is the flip side of the debate that we have just had, and the example that we would use would be trust law.
Provision is already madethere is an equivalentin clause 49, which we are coming to. That clause sets out the test that is applied when there is a void marriage or civil partnership. These clauses are interlinked to reinforce the point. I hope that that clarifies the hon. Gentlemans point.

Amendment agreed to.

Clause 48, as amended, ordered to stand part of the Bill.

Clause 49 ordered to stand part of the Bill.

Clause 50

Meaning of references to parties to a civil partnership

Amendment made: No. 60, in clause 50, page 44, line 10, at end insert
( ) The reference in section 48(5A)(b) to a civil partnership includes a reference to a void civil partnership if either or both of the parties reasonably believed at the time when they registered as civil partners of each other that the civil partnership was valid; and for this purpose it is to be presumed, unless the contrary is shown, that one of them reasonably believed at that time that the civil partnership was valid..[Dawn Primarolo.]

Clause 50, as amended, ordered to stand part of the Bill.

Clause 51 ordered to stand part of the Bill.

Clause 52

Late election by mother with consent of Registrar General

Mark Simmonds: I beg to move amendment No. 175, in clause 52, page 44, line 34, leave out subsection (2).
This is a probing amendment, which is intended to elicit from the Minister the compelling reason behind the provisions on late registration. First, will she clarify whether it is common for people to take more than 42 days to register a birth? Secondly, is the defence applicable only where there has been non-partner IVF treatment, or can it be used by everyone and in other circumstances? Finally, will the Minister explain the circumstances in which more than 42 days would be required to register a birth and why that might be necessary? It would make sense if there were medical reasonsthe mother might, for example, be in a coma. If there are other circumstances, however, it would be helpful to establish what they are, and the reasons for them.

Dawn Primarolo: The clause extends further the 2003 Act. As the hon. Gentleman mentioned, the provisions allow for the extension of the period during which the mother may elect that her deceased partner should be treated as her childs father or parent for the purpose of birth registration, with the consent of the relevant Registrar General. That is unchanged from the 2003 Act, apart from the incorporation of references to same-sex couples; the provision operates in the same way as it would for an application for delay of registration under the 2003 Act, but is extended to same-sex couples.
The period of time could be extended only if the registrar was satisfied that there were compelling reasons. For the purpose of the clause, in the event that after giving birth the mother was unable to register the birth within the statutory periodan example would be that her ill health prevented itshe could be granted an extension of the period in which to register. That is based on the fact that it would clearly be more appropriate for the mother to register the birth than for someone else to do it on her behalf, in that fewer mistakes would be likely to be made. That is the basis for the registration requirement with respect to the mother; the provision maintains that link.
The registrar must, however, be satisfied, and the ill health in question must be something that would absolutely prevent the mother from registering the birth. I recall reading, and will check the figures, because I do not have them with me, that thus far, for married couplesobviously we cannot say what happens with same-sex couples, because they will not get the relevant right until the Bill receives Royal Assentthere have been very few late applications. I have a figure in mind of fewer than 20.
The reason why we know the figures is that the registrar has referred such matters upwards, because they are exceptional, and has requested advice. Such instances are rare; it is expected that they will arise only in exceptional circumstances. It will not be a matter of inconvenience, or something like a cold, preventing registration; it will be the same rules for everyone, in exceptional circumstances.

Mark Simmonds: To be absolutely certain, will the Minister confirm that a compelling reason would not be the mothers indecision, for more than 42 days, about who should be named on the birth certificate?

Dawn Primarolo: It is my understanding that that would not be a compelling reason, but perhaps I may enter a caveat. If we are back to scenarios that might arise, there might be a complication of reasons, such as a combination of extreme distress that ones partner had died, a difficult birth and, as a consequence, mental or physical health matters impinging on the mothers ability to start her life again and register her child. However, one must be absolutely precise. Whether to put the father on the birth certificate might be part of that situation, but the case that the hon. Gentleman mentioned, of thinking, I am not quite sure; I need a few more days to think about it, would not be enough. That would not be acceptable. To my knowledge, that is not how it has operated until now and there is no reason to believe that it should change.

Mark Simmonds: The Minister has clarified the points that I wanted raised and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 52 ordered to stand part of the Bill.

Clause 53

Interpretation of references to father etc.

Dawn Primarolo: I beg to move amendment No. 61, in clause 53, page 45, line 16, at end insert
( ) the Schedule to the Population (Statistics) Act 1938 (c. 12),.

Jimmy Hood: With this it will be convenient to discuss Government amendments Nos. 104 and 62.

Mark Simmonds: On a point of order, Mr. Hood. Perhaps we could have a point of clarification from the Chair. I want to understand why Government amendment No. 104 is detailed under clause 53, when in fact it is an amendment to schedule 6.

Jimmy Hood: I thank the hon. Gentleman for his question. It is a matter of selection. The amendment was deemed relevant to the debate, and that is why it has been selected.

Dawn Primarolo: The Bill sets out the provisions regarding legal parenthood for same-sex couples following assisted conception. The provisions allow for the female partner of the woman giving birth, whether in a civil partnership or not, to be entered as a parent at birth registrationthat is a debate that we have had over a series of clauses.
Something else happens at birth registration, which is why there is a cross-reference with legislation in other clauses. At birth registration, some statistical information is collected under statute by the registrar. It relates to the mothers and fathers ages and, if they are married, the date of marriage, whether the mother has been married before and the number of children born to the mother. The information that the registrar is required to collect is set out in the Population (Statistics) Act 1938. As a result of the measures in the Bill, the questions asked when registering the birth require amendment, as the existing wording would be inappropriate for same-sex couples.
The amendment makes the necessary changes to the 1938 Actwe were required to do it this way roundin order to allow for the collection of information relating to the age of the same-sex parents and the date of any civil partnership, where applicable, so as to treat same-sex parents the same as other parents. This is a requirement beyond the Bill about the collection of statistics and other things under the 1938 Act and the registration of birth. That is why I presume, as you said, Mr. Hood, that all the references that occur in another clause are put together here for the substantive debate. It is exactly the same principle. It is about recording the information.

Mark Simmonds: Again, this provision is fairly standard fare when a Bill will go on to become an Act and amend previous Acts. I suspectthe Minister may or may not confirm thisthat the reason why amendment No. 61 and subsequent amendments were tabled, affecting both clause 53 and schedule 6, is that the 1938 Act was missed off the original list. I am not sure why it is not on the original list in clause 53(5)(a) to (m). Is the Minister absolutely confident that the Bill will not impact on any other Acts? I cannot see anywhere in this clause regulation-making powers to amend other Acts of Parliamentof 1938, 1927 or 1895to ensure that the provisions are comprehensive and that primary legislation is not required in the future to change Acts that are already in place.

Dawn Primarolo: I am as confident as I can be in the outstanding skills of those who took part in the consultation and the pre-legislative scrutiny, those who considered the matter in the other place and the parliamentary draftsmen to ensure that that is the case. They made the position clear to the best of their abilities. However, if it is not clear, there is a power in clause 64 to make consequential amendments. Therefore, there is eventually a loop back. We have attempted to ensure that there is a failsafe, but I am as confident as I can be.

Amendment agreed to.

Clause 53, as amended, ordered to stand part of the Bill.

Clause 54

parental orders

John Pugh: I beg to move amendment No. 161, in clause 54, page 45, line 41, leave out made by two people (the applicants).

Jimmy Hood: With this it will be convenient to discuss the following amendments:
No. 162, in clause 54, page 45, line 42, after second the, insert applicant or.
No. 163, in clause 54, page 46, line 1, after not, insert the applicant or.
No. 164, in clause 54, page 46, line 4, after first of, insert the applicant or.
No. 165, in clause 54, page 46, line 7, leave out subsection (2) and insert
(2A) An application for a parental order may by made by
(a) a couple or
(b) one person who is not married or a civil partner.
(2B) In this section, a couple means
(a) a married couple or
(b) civil partners or
(c) two people (whether of different sexes or the same sex) who are living together in an enduring family relationship and who are not within the prohibited degrees of relationship to each other.
(2C) A parental order may be made on the application of one person who is married or is a civil partner if the court is satisfied
(a) that the persons spouse or civil partner cannot be found,
(b) the spouses or civil partners have separated and are living apart and the separation is likely to be permanent, or
(c) the persons spouse or partner is by reason of ill health, whether physical or mental, incapable of making an application for a parental order..
No. 166, in clause 54, page 46, line 13, after first the, insert applicant or.
No. 167, in clause 54, page 46, line 17, after second the, insert applicant or.
No. 168, in clause 54, page 46, line 18, after applicants, insert
(or in the case of a single person, the applicant).
No. 169, in clause 54, page 46, line 20, after applicants, insert
(or in the case of a single person, the applicant).
No. 170, in clause 54, page 47, line 10, after by, insert a single person or by.

John Pugh: I have the challenging job of moving an amendment tabled by my hon. Friend the Member for Oxford, West and Abingdon, which I will endeavour to do relatively briefly.

Dawn Primarolo: Much more briefly.

John Pugh: Indeed. I preface this by saying that my hon. Friend and I do not see eye to eye on many issues in the Bill, but I am doing this in a spirit of charity and comradeship and not necessarily because I see it as anything other than a probing amendment to which the Minister may want to respond.
Before I discuss the amendment, I have a brief observation about the whole clause. Throughout the previous part of the legislation, when we were trying to tease out the rights of the person who has given non-genetic materialcytoplasmto the IVF process, we rigidly defined motherhood along the lines of child bearing. I have got that clear in my head. The mother is the person who bears the child and not the one who produces the genetic material that forms the child. I understand that. Here, interestingly, we decouple that. We allow it to be decoupled in a way which is probably quite novel. Always under surrogacy, there has been some decoupling. Now we have the clear concept of motherhood being viewed in two different ways by the same bit of legislation.
Returning to my hon. Friends amendment, the crucial issue to which I will draw hon. Members attention is probably the very first section of parental orders in which he has a objection to the word two people and wishes to eliminate two. He suggests that now that the concept of supportive parenting has been established, it seems timely to ensure that single parents should have the opportunity to apply for a parental order following surrogacy. He suggests that that would make the law consistent with current adoption law, which allows applications from single people and couples. The amendment that he proposed would bring the legislation in line with the current adoption law.
My hon. Friends key point is that when the Bill refers to a couplea same-sex couple, a civil partnership or a married coupleadditional phrasing would allow a couple to be defined in the same way as in the legislation, but he adds to that that one person who is not married or a civil partner is also a potential beneficiary of a parental order. He wishes to stress that his point is purely to make the provision consistent with adoption law.

Dawn Primarolo: Surrogacy is a complex area. I shall start by responding to the hon. Gentleman. As far as surrogacy is concerned, the mother who gives birth is the mother. Parental orders, like adoption orders, transfer parenthood after birth. In my view, there is a difference, and I will seek to explain why before asking him not to press the amendments.
Under the 1990 Act, it is possible to make parental orders transferring parenthood only to married couples. The Bill extends the provisions to include civil partners and couples who are not in a civil partnership or married, but who are living as partners in an enduring relationship. A parental order is awarded by a court, subject to the report of the parental order reporter, who visits the parties concerned and prepares a report on whether the provisions of the law are metfor example, whether the woman who carried the child has freely given her unconditional consent.
Surrogacy arrangements are not in themselves enforceable in law, although, when making decisions about whether or not to grant a parental order, the courts will take into account factors such asas we would expectwhere it would be in the best interests of the child to be brought up. The Bill does not extend parental orders to single people. As the hon. Gentleman said, the amendments seek to change that with regard to surrogacy. It is interesting to note that surrogacy has rarely featured in the scrutiny and the debates that have taken place on the review of the 1990 Act and the Bill. Arguments for the change to access to parental orders, which the amendments seek, have surfaced only recently.
Before I answer the specific points, it might be useful to recap by saying that surrogacy is such a sensitive issue, fraught with potential complications such as the surrogate mother being entitled to change her mind and decide to keep her baby, that the 1990 Act quite specifically limits parental orders to married couples where the gametes of at least one of them are used. That recognises the magnitude of a situation in which a person becomes pregnant with the express intention of handing the child over to someone else, and the responsibility that that places on the people who will receive the child. There is an argument, which the Government have acknowledged in the Bill, that such a responsibility is likely to be better handled by a couple than a single man or woman.
I would say to the hon. Gentleman that there is a difference. His point was that single people are able to adopt and to receive IVF, so why can they not get a parental order over surrogacy? The difference is this: adoption involves a child who already exists and whose parents are not able to keep the child, for whom new parents are sought. That is different, which is why there is no parallel. IVF involves a woman becoming pregnant herself and giving birth to her childthere is not a direct parallel. Surrogacy, however, involves agreeing to hand over a child even before conception. The Government are still of the view that the magnitude of that means that it is best dealt with by a couple. That is why we have made the arrangements that we have.
I am grateful to the hon. Gentleman for raising the debate, but I say to him that in the Governments view, discussions about surrogacy should be dealt with elsewhere and not by amending the Bill, because the issues involved are complex and the debate has not been properly considered due to its late emergence as an issue in the Bill.

John Pugh: The Minister has certainly satisfied me with a thoughtful and reflective response; whether she has satisfied my hon. Friend the Member for Oxford, West and Abingdon I somewhat doubt, but I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mark Simmonds: I beg to move amendment No. 176, in clause 54, page 46, line 16, leave out subsection (4).
The Minister was absolutely right to confirm that this is a complex and difficult area. I was pleased on Tuesday when she reassured the Committee that she would take away the whole area of surrogacy and, as was confirmed in the pre-legislative scrutiny Committee, look at the matter in more detail in the context of the Surrogacy Arrangements Act 1985, which is the foundation from which all current surrogacy legislation flows.
I suspect that the hon. Member for Southport agrees with the position of both the Minister and myself with regard to the amendments that we have just discussed. This Committee is the wrong place to get into a detailed discussion about making the surrogacy legislation even more complex andto be bluntconfused than it is already. I agree with the Minister that in this particular context, surrogacy is better handled by a couple than by a single individual.
The amendment relates to subsection (4), in which either one or both of the applicants must be domiciled in the United Kingdom or the Channel Islands, or in the Isle of Man. I understand from legal advice that the subsection is inconsistent with section 2 of the British Nationality Act 1981, which states that a person born outside the UK is a British citizen if, at the time of his or her birth, his father or mother is a British citizen, other than by descent. This may be a very difficult area that the Minister cannot respond to now, but it would be helpful is she could explain in writing how the Bill and the Act are reconciled. If they are not reconciled, why is section 2 of the British Nationality Act not being amended to take account of the fact that both applicants must be domiciled in the United Kingdom? That appears, at least on the surface, to be in direct conflict with section 2 of that Act.

Dawn Primarolo: Under the 1990 Act it is possible for parental orders to transfer parenthood only to married couples. We are extending the provisions to include civil partners and couples who are not civil partners or married, but who are living together in the enduring family relationship to which I referred earlier. I am informed that there are about 50 lawful surrogate arrangements a year through applications for parental orders. That indicates to me that in the current system, the conflict with the Nationality Act that the hon. Gentleman refers to does not appear to have been raised, but as he has brought up that issue I shall go back and check, and write to him as quickly as I can. I have a feeling that if there was a conflict, we would have known about it by now through the interaction of the two Acts, but it is possible that there is a problem and I will certainly look at that. I am grateful for his probing amendment.

Mark Simmonds: I am pleased and grateful that the Minister has confirmed that. On that basis, I beg to ask leave to withdraw the amendment.

Mark Simmonds: I beg to move amendment No. 177, in clause 54, page 47, line 13, after wife, insert
who, in the case of couples who are neither married nor in a civil partnership, must have been in a relationship for a minimum period of twelve months..
The amendment would insert a provision whereby couples who fall within the category in the clause but who are not married or in a civil partnership must have been in a prior relationship, and would stipulate a minimum time period for that relationship. Some hon. Members may feel that it is nit-picking, but I draw their attention to the differences between various provisions of clause 54. Subsection (2) refers to an enduring family relationship, but subsection (11), the retrospective provision, makes no reference to it. Is that a drafting oversight, or is there a specific reason why an enduring family relationship is not relevant for those trying to obtain retrospective parental orders under the Bill that they could not obtain under the 1990 Act?
Another point that I wish to makeI hope to catch your eye if we get to a stand part debate, Mr. Hoodis that greater clarification seems to be needed of what an enduring family relationship is. As has been said, there is absolutely no necessity for a couple, whether same-sex or different-sex, to be in an intimate relationship to get the benefit of many of the clauses that we have discussed. I am trying to establish why there is a difference between subsections of the clause, and particularly why subsection (11) does not state that an enduring relationship is a fundamental requirement for getting a parental order.

Dawn Primarolo: I can see that you are following what the hon. Gentleman says as closely as I am, Mr. Hood, as we go delicately through these important issues. Most of us were listening intently. [Interruption.] I was. It is very important, and I want to understand exactly what the hon. Gentleman is saying, although the tone of my voice made me sound as though I did not mean it.
Clause 54 relates to how parenthood may be transferred by a court order when a woman has carried a child as a surrogate on behalf of a couple who cannot have children themselves. Under the 1990 Act, parental orders transferring parenthood can only be made for married couples. As I have mentioned, the Bill extends the provision to include civil partners and couples who are not married or in a civil partnership but who live as partners in an enduring family relationship, which is what the hon. Gentlemans questions deal with.
When the 1990 Act was introduced, it included a provision allowing married couples who had had a child through surrogacy before the Act came into force to apply retrospectively for a parental order. The Bill mirrors that by including a similar provision for people who were not entitled to apply for a parental order before because they were not married. They must apply within six months of clause 54 coming into force.
The hon. Gentlemans amendment would add that a couple applying retrospectively must have been in a relationship for a minimum of 12 months if they are not married or in a civil partnership. Surrogacy can be a route that couples look to when they are unable to have children themselves, and I do not believeI am sure that members of the Committee do not eitherthat couples would enter into it lightly. The process of a couple deciding that they are both happy with such an arrangement is complex, and they have to find a surrogate who would be suitable to carry their child. That can take a number of years, so in most cases, the couple will have gone through the process together. In addition, when the court is considering the application, it would have to be satisfied that the couple were in an enduring family relationship for the parental order to be granted. As part of that consideration, it is more than likely that the court will consider the length of the couples relationship as well as their commitment to each other. The Government are prepared to continue with the arrangement whereby the family division of the High Court would take the decisions on what made for an enduring relationship that was suitable and in the best interests of the child for a parental order to be made.
There is no reference to this enduring family relationship in subsection (11), to which the hon. Gentleman referred, because to make an application to the court under section 54, if the couple are not married or in a civil partnership, they must be in an enduring family relationship. Therefore, it is not necessary for it to be in the legislation in the way that the hon. Gentleman is suggesting.
I am sure that the hon. Gentleman would agree with the principle that the family division of the High Court, with its experience, is the best place to test whether a relationship is an enduring one. That decision is better made by the courts than by Parliament seeking to put in place arbitrary time periods or definitions, however well meaning we may want to be. The ultimate test when issuing the parental order is what is best for the child.

Mark Simmonds: Of course I accept that couples would not enter into a surrogacy arrangement lightly, and the Minister was quite right to point out that, more often than not, that process can take a number of years. I also understand her comments about the High Court considering the length of the relationship. However, I want to put on record the fact that we are talking about different categories. There is a difference between people looking forward to what may happen in the future and enabling a retrospective decision to be made. I understand the Ministers explanation. It may also be interesting for the Committee to know whether the Minister has a view about how many retrospective cases there might be under subsection (11) once the Bill has been enacted and about how many of those will be same-sex couples, or different-sex couples.

Dawn Primarolo: The Government will have no idea about that as it is not possible to measure. However, as I said during the earlier debate on the British Nationality Act 1981, there were something like 50 applications a year for parental orders involving surrogacy. It is not a huge number, but parental orders are considered on a case-by-case basis by the High Court.

Mark Simmonds: I am grateful to the Minister. The purpose of the amendment was to ensure that there are no loopholes in the legislation. I am grateful for her response and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 54 ordered to stand part of the Bill.

Clauses 55 and 56 ordered to stand part of the Bill.

Schedule 6

Amendments relating to parenthood in cases involving assisted reproduction

Amendment made: No. 104, in schedule 6, page 72, line 25, at end insert

Population (Statistics) Act 1938 (c. 12)
A1 (1) In the Schedule to the Population (Statistics) Act 1938 (particulars which may be required), in paragraph 1 (which relates to the registration of a birth)
(a) in paragraph (b), after child, insert or as a parent of the child by virtue of section 42 or 43 of the Human Fertilisation and Embryology Act 2008,, and
(b) in paragraph (c)
(i) in sub-paragraph (i), after marriage insert or of their formation of a civil partnership, and
(ii) at the beginning of each of sub-paragraphs (ii) and (iii) insert where the parents are married,.
(2) Sub-paragraph (1)(b)(ii) does not extend to Scotland..[Dawn Primarolo.]

Question proposed, That the schedule, as amended, be the Sixth schedule to the Bill.

Robert Key: Schedule 6 is an enormous part of the Bill; it is 27 pages long and, in the other place, it received substantial scrutiny. Other things have happened since, so I wish to ask the Minister to clarify one or two points.
On 12 December 2007, Baroness Deech noted in another place that birth certificates are used for all purposes and that they will be used all over the increasingly globalised world of proof of this and that. She argued that birth certificates should therefore focus on the childs origins, not the situation of the parents. Baroness Barker disagreed, arguing:
A birth certificate is not a certificate of somebodys genetic identity...but...a record of who a childs social parents are at any time.
The title of schedule 6 is Amendments relating to parenthood in cases involving assisted reproduction. The Minister in the other place, Baroness Royall, argued:
The Bill allows that same-sex couples, whether in a civil partnership or being treated together, can both be legal parents of a child born through assisted conception. For these provisions to be fully legally recognised, the Bill includes amendments to other Acts to allow birth certificates under UK, Scottish and Northern Irish law to record that.[Official Report, House of Lords, 12 December 2007; Vol. 697, c. 296-99.]
That seemed to be all very certain. However, on 4 February 2008, on Third Reading, Lord Jenkin tabled an amendment that would have meant that within four years of schedule 6 coming into force, the Secretary of State would carry out a review of the law and practice to decide whether to include donor conception on birth certificates. Baroness Royall resisted the amendment, but made a commitment that the Government would carry out a review. She said:
I can make a firm commitment that the Government will carry out a review of practices in informing donor-conceived children of the fact of their donor conception and whether there is a need for a change in the law to best ensure that donor-conceived children are informed of their donor conception. We will do this within the timeframe suggested by the amendment tabled by the noble Lord, Lord Jenkin.[Official Report, House of Lords, 4 February 2008; Vol. 698, c. 904.]
That also seemed to make the matter clear, but on 2 June, the Secretary of State for Work and Pensions and the Secretary of State for Children, Schools and Families, issued their White Paper, Joint birth registration: recording responsibility, chapter 1, paragraph 5 of which states:
This White Paper focuses on the way the birth registration system applies to unmarried parents and their children, particularly from the childs perspective. It does not cover the birth registration process for married couples, which works well and where we do not propose to make any changes. Nor does it cover changes to birth certificates arising from adoption...or from the changes proposed in the Human Fertilisation and Embryology Bill to allow a same-sex couple to be recorded as parents at birth. Further consideration of the latter will be needed once that Bill has passed through Parliament.
Will the Minister explain whether the 27 pages of the Bill that we appear to be about to nod through will be wiped off the statute book by future Government considerations when they legislate on the document Joint birth registration: recording responsibility? I am sure that the Minister has a very fine answer for us and I would be grateful to hear it before we proceed.

John Pugh: I have the same concerns about the schedule. If we are honest, few of us have mastered the complete detail of this horrendously large provision. It amends legislationindeed, we have seen this in the past few minutesthat stretches from 1928 to about 1995.

Robert Key: From 1836.

John Pugh: I stand corrected.
We are confronted with an adjustment to the law that is of byzantine complexity, but we are implicitly being asked to believe that there is a kind of coherence to it, even though we have not established that there iswe must take that on faith. I am sure that we have enormous faith in the ability of parliamentary draftsmen to guarantee the integrity and coherence of the law, but I can hear the alarm bells ringing.
If anything, those alarm bells grew louder last night when I inspected a website devoted to fathers interests that explains how fathers can successfully deal with any threat to those interests. The website put enormous stress on the importance of the birth certificatewhat it means and how fathers can use it to get the rights, the access to their children and the responsibilities that they feel they deserve.
There was a naïve belief that the birth certificate had clarity, but that can no longer be established. If there is a dispute in the House of Lords between people who should know whether the birth certificate is supposed to indicate genetic origin or social parenting, the ordinary public will suffer from a certain vagueness.
The Minister said that an entry on the birth certificate could be purely symbolic.

Dawn Primarolo: With respect, the quote that the hon. Gentleman attributes to me, in which I used the word symbolic in relation to birth certificates, was not a general statement. I was speakingfollowing on from the 2003 Actabout specific circumstances in which the father or parent is deceased. I was not making a general point about the symbolism or otherwise of entries on the birth certificate. The hon. Gentleman should not take the specific for the general and assume that it reads across, because it does not.

John Pugh: In no sense was I attempting to do that. However, we have established in the case of a deceased parent who does not contribute sperm to the IVF process that the entry on the birth certificate would indicate neither a social role nor genetic origin. We are in a very confused situation, although I am not sure whether we can rectify it in this Committee.
The hon. Member for Salisbury talked about whether donor conception should be indicated on the birth certificate. I stand to be reasoned with for or against on the issue and I have no fixed views, but donor-conceived adults should know their genetic history. If there is no way for them automatically to find that outif nobody tells them and they make no inquiriesthey could be asked in the doctors surgery whether they have a certain disease, and they would, in all honesty and with complete integrity, make an inaccurate and false claim because there was no such disease in what they thought was their family. That is a concern.

Dawn Primarolo: Does the hon. Gentleman not accept that the same could, regrettably, apply to peoples genetic make-up now? We put absolute trust in our parents to ensure that we know such things. With IVF, parents are put in exactly the same position of trust in ensuring that their children know these things. The legislation loops around.

John Pugh: Yes, we could be wrong about our genetic inheritance and our parents could mislead us, but they would do us a disservice, particularly as we are learning that disease profiles are related to ones genetic disposition.

Robert Key: I believe that what the Minister said needs qualifying. Of course it is true that we trust our parents to tell us whether they are in fact our parents, but unfortunately we know that in one live birth in 10 the mother does not know who the father is. That evidence was given to the Joint Committee. More important today is that there is a difference between trusting our parents and trusting the state. To be involved in state deception, with the state preventing a child from knowing its genetic antecedents, is quite another matter.

John Pugh: The hon. Gentleman makes a good point. The state is knowingly putting people in a position less advantaged than they ordinarily have. I believe that legal opinion ought to be sought on the matter, because there is a human rights issue to be decided. The state knows something that the individual does not. The individual may consult the state medical service, which may ask a genuine question, but that person cannot answer adequately because he has no means of doing so.

Mark Simmonds: The hon. Gentleman may not be aware that legal advice has been sought, but counsels advice is that it may be against the human rights of the child knowingly to remove potential genetic knowledgeperhaps preventing the child from benefiting from treatment to resolve a genetic inheritance problem because the information had been removed from the birth certificate.

John Pugh: I am grateful to the hon. Gentleman for that intervention. It supplements the point that I was making.
The more fundamental point is explicit. It is that people have almost a moral right to know of what they are made. That is over and above what human rights legislation provides. The state should not be seen to frustrate that. We have opened up a wide debate, possibly going beyond schedule 6, but those concerns will re-emerge on Report.

Evan Harris: Before the Committee goes down the human rights path, it is probably worth considering the report of the Joint Committee on Human Rights on the issue. As the hon. Member for Boston and Skegness said, at best it is a potential rightin other words, the right to know is engagedbut no case law in Europe or here has established any sort of actionable right, not even against the state.

John Pugh: I thank my hon. Friend for that intervention. I am reluctant to get into esoteric debates about human rights. My hon. Friend is a fundamentalist on human rights in a way that possibly I am not. The point is that I know discrimination when I stare at it; in this case, we appear to be staring at discrimination facilitated by the state.

Evan Harris: Fundamentalist or otherwise, I am grateful for the opportunity to speak again. I am conscious of the fact that we might debate the subject further when we come to one of the new clauses, but it is important to clarify a number of things.
I support the Governments position on this part of the Bill and their approach to birth certificates. I know that that view is not shared across my party; for us, it is a free vote issue, and Baroness Barker took a different view in the House of Lords. She was entitled to do that, and she did so effectively. I respect her sincere views on the matter, but birth certificates are a statement of legal parenthood, and it does not necessarily relate to genetic parenthood.
The hon. Member for Salisbury spoke of one in 10. Some research studies show that as many as 10 per cent. of children believe their social father to be their genetic father when he is not; whether the mother knows who is the father is a separate issue. The child does not know in non-paternity cases far more frequently than in assisted reproduction. There is clearly a difference if the state has the information, but in respect of allowing children to know who their genetic parents are, the Government have chosen not to tell the children directly, and not to force parents but merely to encourage them to do so.
That is best practice, and it is right that the Governments funding approach promotes it. That is right and proper. Maybe I am being a fundamentalist about not being statist on the matter, but I do not think that it is the states role to wade into families, disrupt the family dynamic and tell them what to do. It would be going over the heads of parents, who are entitled to some privacy about non-paternity and, if they choose not to tell their childrenregrettably, in my viewabout assisted reproduction.
The point has been made that that puts such children at a disadvantage in terms of family history if they see a doctor, but non-paternity is far more frequent than assisted reproduction. As we know, even where one cannot access identifying information about a donor, it is always open to a child who knows to get that information as an adult. Parents have their childrens best interests at heart and will be aware if there is an issue of familial disease that will bear strongly on their children.
There is no perfect solution. There are significant drawbacks in seeking to specify over the heads of parents that children should be notified or birth certificates marked. Birth certificates are public documentswell, they are not public documents, but they must be produced on certain occasionsand people have a right to privacy.
To finish with the human rights issue, it is often statedit was stated, incorrectly, in the House of Lordsthat there is some human right to know ones genetic parents. If that is the case, one would have a right to perform paternity tests on ones father or lie detector tests on ones mother, overriding their right to privacy. That is not the case. Fathers and mothers have a right to privacy. If we go down that path and follow that idea to its full conclusionI do not suggest that hon. Members are saying that we shouldthere will be implications. I shall not read it out, but I draw the Committees attention to pages 56 and 57 of the Joint Committees report, which clarifies that the Rose case showed that article 8 was engaged on private life, but that that case was never decided in respect of what balance must be found between the persons and the parents rights.

John Pugh: My hon. Friend spoke about maternity. The sort of case that most acutely affects me is one in which, for example, the child of a donor egg was female and a strong history of breast cancer, which has a virulent genetic component, was attached to the donor family. Would that not be putting somebody at a serious and possibly even fatal disadvantage?

Evan Harris: Yes. Clearly, people who have inherited a genetic disease are at a disadvantage. That is also the case where a male transmits a disease unbeknown to the person who inherits it. Believe me, I know about the tragedy of serious inherited genetic disease, but the fact that such things happen does not mean that we need to override parents rights.
The issues are difficult, but I think that the Government have taken the right approach. They have said that they will review the matter, and we must remember that when the Government removed donor anonymityI thought that that was wrong and that there should be a choicethey chose not to force parents to tell their children of the fact of donor conception. When donors are identifiable, there is an increased risk that parents will not tell their children, so the result is more secrecy, not less, because parents believewrongly, but quite naturallythat children will try to find their genetic parent. The issues are complex, but in this Bill, the Government have got it right. Although the schedule is complex, I support its overall approach.

Brian Iddon: Before the Minister respondsI expected this discussion to take place under new clause 1, but it has been generated nowhas she given any thought to the suggestion floated by one organisation that we should have a short and a long birth certificate? The short one would be essentially the one that we use now to obtain various services and produce to show what parents brought us up in a social way. At the same time, if it is a donor-conceived birth, a long birth certificate would be presented to the parents, which could be kept confidential, wherever those parents wish to keep it. When they think that the time is right to tell the child who is conceived in this way about its genetic background, they could present the long birth certificate to the child. I have not given the idea much thought, but it is worthy of consideration by the Committeeand by the review, when it takes place.

Mark Simmonds: I would like to join other hon. Members who have spoken in the debate and again express my concern about schedule 6. As my hon. Friend the Member for Salisbury rightly pointed out, the schedule is extremely lengthy, detailed and complex. I do not wish to repeat what others have said, but I want to support the points made by my hon. Friend and the hon. Member for Southport on the seeming conflict that exists in Government policy direction. The Bill says, on page 73, in paragraph 4(3)(1B):
the registrar shall not enter in the register the name of any woman as a parent of the child by virtue of that section.
It goes on to make some exceptions. That throws up the question of the necessity and importance of a mother, as well as the importance and necessity of a father, which we debated on the Floor of the House a little while ago. That seems to be the policy direction in the Bill, but let us look at the White Paper just released by the Department for Work and Pensions. A press release from the Secretary of State for Children, Schools and Families quotes from the foreword by the two Ministers, which says that the White Paper
sets out...measures to promote and support joint birth registration and changes to give mothers a right to insist that the father acknowledges his responsibilities to his child by registering on the birth certificate. Equally, it gives a father a new right to insist that he is registered.
I accept that that is not yet legislative change. Those are non-legislative measures. However, the press release goes on to say that the two Departments will jointly develop further legislation within the Government, which throws out the question of how the interactions will occur and whether they will fit comfortably alongside each other. That seems to be, at the very least, a conflict of direction.
I do not wish to get into the detail of the debate on new clause 1, which will occur later in Committee. We need to raise specific issues in some detail when we come to discuss that new clause. However, there appears to be an inconsistency. We have to acknowledge that there have been inconsistencies for some time on the contents of birth certificates. They have not always been an exact genetic record of the child, but that does not mean that the state should be complicit in making them less of an accurate record. I am sure that later we will have the genetic versus social debate, but the birth certificate is an important document. I am nervous about the state colluding in what is, ultimately, a deception on behalf of the as yet unborn child.
We can get into the legal wrangling later on, but I am nervousthe hon. Member for Oxford, West and Abingdon made the point, although he seemed to dismiss it rather quicklythat we could disadvantage a child who may well have a familial disease by not having an accurate record on the birth certificate. We should discuss the suggestion made by the hon. Member for Bolton, South-East, because it is a potential solution to the problem. I have wrestled with the issue for a considerable time and I think that I have come to a conclusionalthough there are circumstances in which it would not be possiblethat wherever and as much as possible the birth certificate should be a biological record of the child.

Dawn Primarolo: The hon. Member for Salisbury put the matter clearly. We have gone into other discussions that buttress that, but I want to answer his three points specifically, without drifting into new clause 1, which we will debate later. The Bill, set within the specific parameters of IVF, continually cross-references and refers to the need for the parents to be responsible for the child, except where the parent, including the father, is deceased. In that context, all hon. Members agree that, as I have said in our proceedings, the decision to have a child should not be taken lightly and carries with it responsibilities. That is continually reinforced in the Bill. It is about caring, nurturing, supporting and providing for that child.
Schedule 6 cross-references, for same-sex couples, the responsibilities that we are updating in the Bill in respect of the 1990 Act with every other piece of legislation on registration and responsibilities for a child.
The second point made by the hon. Member for Salisbury, which was also considered in the debate in another place, was about whether the fact that a child was donor-conceived should appear on their birth certificate. The point about transmission of genetic predispositions to certain diseases for donor-conceived children is already dealt with, as all donors are screened. We know a huge amount about such things now, so unless a condition is not known about, it is less likely that a donor-conceived child will be at a disadvantage, as the hon. Member for Southport mentioned, than that anyone else will, because their genetic parent will have been actively screened before conception. It is a long, difficult process and the donor enters into that consideration.
On the point about whether a childs being donor-conceived should appear on their birth certificate

John Pugh: Will the Minister give way?

Dawn Primarolo: I should just like to make the general points to get them on the record, but after that I am happy for the hon. Gentleman to respond. I should like to state my case first.
Before we go down the highways and byways of human rights and everything else, it is good to mention that the Joint Committee on Human Rights said that it was concerned about the suggestion that the donor information should appear on the birth certificate, because it felt that it raised serious concerns about the privacy of the donor as well as of the donor-conceived individual. On that basis, the Government recognised that this was a highly complicated issue and that other considerations were in place, including telling and talking projects and counselling. We accepted in another place that it would be sensible, after the Bill receives Royal Assentwe cannot start before thenfor us to consider the matter and return to the House within four years.
The final point was about what the Department for Work and Pensions record says. The DWP White Paper, which was written before the Billalthough the Bill is going the way the White Paper wants to gois about the responsibility of parents. That has been recognised, specifically, in the context of a commitment to the upbringing of the child, financially and otherwise. The White Paper addresses that point, which is already dealt with in the Bill. The Bill also includes a cross-reference to the child support legislation to ensure that there is a commitment in that regard. Although the White Paper was written without reference to the details in the Bill, which has yet to receive Royal Assent, the Bill does not contradict it. In fact, the White Paper talks about bringing everything up to the point where all parents are responsible, including mothers and fathers and those in civil partnerships and relationships. That is a different discussion.

It being twenty-five minutes past Ten oclock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at One oclock.